Don't let courts bypass politics to challenge the government

Next month, the Supreme Court will decide whether to hear a case challenging an Obama administration policy that would give permission to millions of undocumented immigrants to stay and work in the United States.

But the most important issue in the case - and the best reason for the court to take and decide it quickly - has nothing to do with immigration policy, and everything to do with whether the 26 states that are plaintiffs may use courts rather than the political process to thwart the president's policies. So far, two lower courts have said yes. Regardless of its views of the merits of the administration's immigration policy, the Supreme Court should say no.

Just over a year ago, President Barack Obama announced a new policy giving undocumented parents of US citizens and lawful permanent residents permission to live and work for three years without fear of deportation, if they met certain qualifications. On the heels of the announcement, Texas and 25 other states sued, arguing that the change in policy violated federal statutes and exceeded the president's authority under the Constitution. A district court judge agreed, and stopped the policy from going into effect.

A three-judge panel of the US Court of Appeals for the Fifth Circuit concurred by a vote of two to one. The panel also agreed with the lower court that Texas could bring this lawsuit because, if the reforms went into effect, the state would have to provide driver's licences to undocumented immigrants, which, Texas claims, would cost it money.


If lawsuits against federal policies are routinely allowed, then state officials may use the courts to delay implementation of federal policies with which they simply disagree. The result will be a possible gridlock, as it is rare that federal policies today find unanimous support among the 50 states. PHOTO: REUTERS

This harm was enough for standing, the court said.

But that legal reasoning is at odds with decades of Supreme Court precedent limiting who may bring a case to federal court.

Until now, only those who have been directly harmed in a concrete, individualised way have been permitted to sue. Even if a federal law raises taxes, increases air pollution or gives tax breaks to private schools that discriminate based on race, parties that might be affected most likely will not be able to sue because they have only a generalised grievance suffered by millions of others, rather than a uniquely personal injury.

These limits serve the important purpose of constraining the power of unelected judges in our democratic system. In the words of former chief justice William H. Rehnquist, federal courts are not to be "roving commissions" charged with second-guessing elected officials, but instead exist to resolve concrete disputes between injured parties.

If the harm suffered is so broad as to affect thousands or millions of people, then the proper recourse is to seek change through the political process, not the courts. If anything, this understanding holds even more true for states, which are especially powerful actors in our political system - and which are often suing, as in the immigration case, based on injuries to their residents.

The lower courts ignored these principles when they allowed Texas to sue because the state might lose a minimal amount of money - a conclusion that portends a vastly expanded role of the federal courts in federal-state disputes. As the dissenting judge in the appeals court decision pointed out , any executive branch policy change would impose some administrative costs on states and would, on Texas' theory, justify a lawsuit by any one of the 50 states.

It is not difficult to imagine a future in which any and all executive branch decisions would first be brought before a federal court by whichever state attorney-general object to that policy. Worst of all, if such lawsuits are routinely allowed, then state officials may use the courts to delay implementation of federal policies with which they simply disagree. If state officials can use litigation to slow down the implementation of new federal policies, they are certain to do so.

The result will be gridlock; federal policies will simply be ground to a halt by such litigation, as it is rare that federal policies today find unanimous support among the 50 states.

This vital question about the constitutional power of states to drag the president into court has been mostly overlooked by both advocates and opponents of immigration reform, perhaps because it creates odd ideological bedfellows.

Liberal Democrats who support Mr Obama's executive action overhauling the immigration system also believe in loosening the rules permitting who can bring cases into court. Conservative Republicans who oppose the President's executive action on immigration object to broadening standing to include parties that have a generalised grievance that can be resolved through the political process.

Nonetheless, the issue needs to be addressed. Texas recently filed another lawsuit against the federal government over the resettlement of Syrian refugees, and challenges to an array of other federal programmes will surely follow if the lower courts' standing analysis is sustained.

The Supreme Court should use the challenge to Mr Obama's immigration policy to remind states that litigation is not an alternative to the political process. The justices should accept the case, hold that the plaintiffs lacked standing and send it back to the lower courts with instructions to dismiss.

Otherwise, even if the court upholds the Obama administration programme, Texas will win for losing, setting a dangerous constitutional precedent that will cause mischief for all presidents and judges - Democrats and Republicans alike.

  • Amanda Frost and Stephen I. Vladeck are law professors at the Washington College of  Law at American University.
A version of this article appeared in the print edition of The Straits Times on December 23, 2015, with the headline 'Don't let courts bypass politics to challenge the government'. Print Edition | Subscribe